ConCourt rules in favour of activists

RULING: PART OF GATHERINGS ACT UNCONSTITUTIONAL

Peaceful protests legal after part of Regulation of Gatherings Act is declared unconstitutional.

Sets aside the convictions and sentences of 10 activists charged under Act.

Activists of the Social Justice Coalition (SJC) won a huge victory for the right to peacefully protest in South Africa after the Constitutional Court yesterday declared section 12(1)(a) of the Regulation of Gatherings Act unconstitutional.

In a unanimous judgment, the court ruled that the section of the Act, which makes it a crime to convene a group of more than 15 people without first notifying the municipality unjustifiably limited the constitutionally guaranteed right to assembly, demonstrate, picket and present petitions peacefully and unarmed.

The court also set aside the criminal convictions and sentences imposed on 10 SJC members who were arrested and charged under the Gatherings Act after chaining themselves to the Civic Centre railings to protest about a lack of clean and safe sanitation in Khayelitsha.

The court found: “People who lack political and economic power have only protests as a tool to communicate their legitimate concerns.

“To take away that tool would only undermine the promise in the constitution’s preamble that South Africa belongs to all who live in it, and not only a powerful elite.

“It would also frustrate a stanchion of our democracy: public participation’s. This is all the more pertinent given the increasing rates of protest in constitutional South Africa lately.”

The SJC was supported in their application by Equal Education, the Right2KnowCampaign and the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.

SJC’s general secretary Phumeza Mlungwana, who was also one of the accused, said the judgment was about reiterating people’s right to protest, but was also about empowering people to organise and fight for their rights.

“Too often working-class people are left with no option but to protest for the most basic constitutional rights, yet stand a great chance of being criminalised,” she said.

The court ruled that the section of the Act was unconstitutional in its entirety but left it up to parliament to decide on any revisions of the Act.

The ruling will not have retroactive effect and will not affect finalised criminal trials or those trials where review or appeal proceedings have been concluded, but will apply to all pending and future cases.